Tag: JSC

Judge Naeem promoted to Chief Judge of the Juvenile Court

Former Civil Court Judge Mohamed Naeem who was transferred to the Juvenile Court last week as a punishment for disobeying Superior Court, has been promoted to Chief Judge of the Juvenile Court.

The Judicial Service Commission (JSC) said that the commission decided to appoint Naeem as the Chief Judge of the Juvenile Court during a commission’s meeting held yesterday.

”The decision was made since the Chief Judge of the Juvenile Court has been appointed to the High Court bench, and to keep the court functioning,” the JSC said in its website.

It also said the other judge at the Juvenile Court was currently on a scholarship.

The decision to transfer Naeem to the Juvenile Court was made during a meeting of the JSC held last Thursday.

‘’The commission decided to do so as an action taken against Judge Mohamed Naeem for he has refused to conduct trials of cases concerning the state, before the parliament gives consent to the [then] Attorney General [Dr Ahmed Ali Sawad],’’ JSC then said in a statement.

The JSC said that the case was investigated by the sub-committee formed to recommend disciplinary measures against judges.

The investigation of Naeem came after he reportedly declaring during the first hearing of a case filed against the state that he would not hear cases involving the state before parliament approved the reappointment of former Attorney General Dr Ahmed Ali Sawad.

Naeem’s decision was in defiance of precedent set by both a majority of Civil Court judges as well as the High Court, which had ruled that such cases could be heard before the AG received parliamentary consent.

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Judges legitimised JSC’s actions with their silence

Is the law community finally getting ready to stand up to the JSC?

On Saturday night, as Earth Hour plunged the world into darkness, the Judicial Service Commission (JSC) quietly went about swearing in its controversial five new High Court appointments.

The ceremony, held at the JSC premises in the former Presidential Palace, marks the second time in less than a year that the JSC has sworn in judges under circumstances that are legally dubious and highly challenging for democratic consolidation.

The first occasion was in August 2010 when the JSC disregarded Article 285 of the Constitution relating to the educational and other qualifications of the bench and arranged for close to 200 judges to re-take their oaths, regardless of their professional or ethical qualifications.

160 of the judges had been originally appointed by the previous regime, and over a quarter of them possessed criminal records. Many more failed to meet the required educational qualifications by a long shot, having only attended  primary school – an establishment that is yet to be known as a bastion of legal education.

Although the JSC had then decided to treat Article 285 as nothing more than ‘symbolic’, its Annual Report 2010 published this month lists a total of 191 judges as having been sworn in last year ‘under Article 285 (c)’.

The implication is clear, and clearly false – the judges were reappointed to fulfil the stipulations of Article 285.

According to the JSC – except for President’s Member Aishath Velezinee who launched an emotive appeal against the procedure as the judges prepared to re-take their oaths – such a ceremony adequately met the constitution’s ‘symbolic’ requirement for judicial reform.

None of the sitting judges, nor any other member of the law community, mounted any significant objections to JSC’s dismissal of the Constitution as ‘symbolic’ and proceeded to re-take their oaths, implicitly legitimising JSC’s approach.

JSC’s ‘winning’ streak

Until now, this initial tacit complicity of the law community in the JSC’s actions had remained largely unchanged as lawyers and judges all appeared to turn the other cheek as the number of allegations of unconstitutional policies and activities in the JSC continued to mount.

Indeed, none of the cases brought against the JSC have so far been successful. This state of affairs is even more remarkable when it is taken into account the JSC’s ‘wins’ have been due to technicalities rather than reasoned argument or skilled interpretations of the law.

In January last, for instance, the Civil Court threw out a lawsuit brought against the JSC by Treasure Island Limited, which alleged that the Commission had been deliberately negligent in its constitutional duty to investigate all complaints of judicial misconduct.

Despite an admission by the JSC during the hearings that it did not have a standardised procedure for dealing with complaints – or anything else for that matter – the Civil Court threw out the case when the plaintiff was late for what was to be the penultimate hearing.

The dismissal meant that the JSC’s complaints procedure – or lack thereof – eluded legal and public scrutiny despite clear indications that such an examination was necessary in light of JSC’s methods for dealing with complaints, which were at best ad hoc by its own admission.

Last Thursday, it was on almost exactly the same grounds that the Supreme Court dismissed Criminal Court Judge Abdul Bari Yousuf’s lawsuit against the JSC alleging that the policy adopted by the JSC to select candidates for the high Court bench was discriminatory and therefore unconstitutional.

Judge Abdul Bari, the Supreme Court ruled on Thursday, had violated court regulations by taking leave without giving prior notice to the court as is required of all claimants in an ongoing case. On these grounds the case was thrown out.

The Supreme Court’s decision to dismiss the case becomes all the more confounding when seen in light of the force and speed with which it moved to acquire the files from the Civil Court where Judge Bari first lodged it.

Citing ‘public interest’, and the magnitude of its importance to the Constitution, the Supreme Court on 21 January used an unprecedented Writ of Prohibition to force the Civil Court to hand over the case files.

Shortly after, the Supreme Court ruled that given the gravity of the matter, only the Supreme Court had jurisdiction over the case. The Civil Court, it said, did not have the authority to decide constitutional matters or matters relating to a higher court.

No need for a lawyer

After two sittings, in which JSC member Dr Afraasheem Ali – appointed as JSC’s representative to the Supreme Court after some frantic self-lobbying over the ‘big telephone in the JSC’ – denied all wrongdoing, the Supreme Court threw out the case.

Despite having been officially made aware of a leaked audio which provides evidence of the unorthodox – if not illegal – methods by which Dr Afraasheem managed to confirm himself as the JSC’s legal representative, the Supreme Court did not raise any objections to his new role as ‘defence counsel’.

Although the JSC is composed overwhelmingly of judges or other legal professionals Dr Afraasheem is not one of them. In fact, despite the growing number of lawsuits against it, the JSC is yet to hire a professional lawyer – hence the need for members to moonlight as defence counsel, qualified or not.

As it turned out, not much training or skills were called for as the Supreme Court threw out the case on 24 March without addressing the issues that the Court itself had deemed as highly important.

The Supreme Court decision, delivered after 4:00pm on Thursday, freed the JSC to swear in its new appointees. It did not waste any time, quickly arranging for the ceremony to take place not much more than 24 hours later.

Although Supreme Court regulations provide a seven-day period in which a claimant can appeal a ruling, JSC’s expedited oath-taking ceremony effectively pre-empted any such action by Judge Bari.

The Supreme Court’s decision to dismiss the case also means that the concerns raised by Family Court Chief Judge Hassan Saeed alleging similar violations of the Constitution by the JSC in its High Court appointments were not addressed either.

By the time he lodged his case, also at the Civil Court, the Supreme Court had ruled that only it had jurisdiction over the matter. His case, too, was then transferred to the higher court to be heard with Judge Abdul Bari’s case.

Personal interest versus public interest

Unlike the oath-taking ceremony in August last year, there appears to be less appetite among members of the judiciary to swallow whole the JSC’s interpretation of the Constitution this time around.

Back then none of the judges stood to make a personal loss in re-taking the oath. The negative impact of such an action would have been, and has been, on the public’s faith in the independence of the judiciary.

In the current dispute, however, the JSC’s appointment criteria as well as the Supreme Court’s dismissal of any alleged wrongdoing on the part of the JSC have cost the appellants – and other unsuccessful candidates – a seat on the High Court bench.

The personal cost appears to have galvanised the law community into action in ways that the JSC’s dismissal of the Constitution in August 2010 did not.

Judge Hassan Saeed, for instance, wrote to President Nasheed on Saturday, asking him to apply the powers vested in the executive by Article 115 of the Constitution, which accords the president both the right and the duty to intervene in furtherance of the rule of law.

Judge Hassan Saeed’s appeal to President Nasheed to use his executive powers to bring the JSC in line marks not only a potential turning point in the law community’s attitude towards the JSC and the role of the courts in supporting it; it also signals a u-turn in the judiciary’s perception of the executive’s relationship with the judiciary.

When President Nasheed criticised the JSC in June 2010, when it first decided to disregard Article 285 of the constitution, the Judges Association of Maldives (JAM) was scathing in its response.

In a press release, JAM described President Nasheed’s condemnations of the JSC’s actions at the time as ‘disrespectful towards the honour and dignity of judges’, and said his criticisms were indicative of the ‘negative view he holds of the judiciary’.

The Judges Association also accused the president of attempting to unduly influence the JSC, which it said, would ‘render separation of powers obsolete’.

It is not known yet whether President Nasheed has responded to Judge Hassan Saeed’s letter, a copy of which Minivan News has obtained.

If the president does heed the call to intervene in the matter, the law community’s reaction would tell whether or not it has arrived at a point where it is willing to stand up to threats to judicial independence – perceived or real.

As Pakistan’s law community demonstrated in 2007, the strongest ability to establish and protect the independence of the judiciary lies within itself and not outside of it.

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Senior judges accuse Supreme Court of violating due process in High Court appointments dispute

Two senior judges have accused the Supreme Court of violating due process and rules of procedure by unfairly dismissing a case challenging the legitimacy of the Judicial Service Commission’s (JSC) selection and appointment of judges to the High Court.

Five judges were sworn in to the High Court bench by the JSC last night after the Supreme Court on Thursday dismissed a case filed by Criminal Court Judge Abdul Bari Yoosuf at the Civil Court claiming to show procedural and legal issues in the JSC vetting process. Bari’s case was later entered into by Family Court Chief Judge Hassan Saeed as a third party.

On January 20 – three days before the judges were due to be sworn in – the Civil Court issued a temporary staying order halting the appointments by the JSC pending a final ruling.

The Supreme Court however transferred the case from the lower court a day later and conducted two hearings before dismissing it without issuing a verdict on Thursday (March 24) after neither Bari nor Saeed reportedly appeared at court.

The Supreme Court had announced on January 21 that it was taking over the case as it involved “a matter of public interest”.

Judge Bari, who was himself among the candidates for the High Court, however insists that section 23 of the Supreme Court regulations – which requires claimants to inform the court prior to leaving the country or face dismissal of their case – does not apply to him as he had filed the case at the Civil Court.

The Criminal Court judge claims that he had also informed the senior registrar of the Supreme Court of his departure on a personal trip. In an apparent violation of standard procedure, chits were reportedly sent out to the involved parties two hours before Thursday’s hearing began.

Moreover, under section 75(c) of the Supreme Court regulations, the court must give a maximum period of seven days for the claimant to file the case again. However, the JSC – chaired by Supreme Court Justice Adam Mohamed Abdulla – decided to hold the swearing-in ceremony on Saturday night, effectively preempting Bari from filing the case again.

In a letter sent to President Mohamed Nasheed today, Chief Judge Hassan Saaed writes that “that the case was dismissed in violation of legal principles and procedures came as a shock to the judiciary.”

Saeed added that as a result of the incident, “the growing confidence that I and ordinary citizens had in the judiciary is lost,” urging the President to “stop this process continuing unlawfully.”

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Letter on High Court appointments

Dear President Mohamed Nasheed,

Since the committee has not followed the criteria set up by the Judicial Service Commission (JSC) to allocate marks for the potential judges of the high court, and since constitutional problems are apparent in the process of appointing judges to the High Court, I voluntarily participated in case forwarded by Baa Kendhoo Abdul Bari Yousuf, in the hopes that an independent and fair verdict would be reached.

But to the surprise of the whole judiciary, this particular case has been rejected by the courts and as a result the trust I, myself and the people have placed in the judicial process has grown faint.

Therefore as I am responsible for heading an official institution, I am obliged to work towards correcting this matter. And according to the article 115 of the constitution, since it is your responsibility to maintain the rule of law, I am obliged to report this to you. I sincerely request you to bring an end to this process which is violating the rules and laws of the State. Due to the inconvenience and shortage of time, I am unable to provide you with all the details of the matter.

Yours sincerely,

Hassan Saeed

Chief judge of Family Court

All letters are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write a letter, please submit it to [email protected]

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JSC appoints Judge Naeem to Juvenile Court as punishment

The Judicial Service Commission (JSC) has appointed Judge Mohamed Naeem – who is currently a Civil Court Judge – to the Juvenile Court to punish him for disobeying the decision of a superior court.

The decision to transfer Naeem to the Juvenile Court was made during a meeting of the JSC held last Thursday, the commission said in a statement.

‘’The commission decided to do so as an action taken against Judge Mohamed Naeem for he has refused to conduct trials of cases concerning the state before the parliament gives consent to the [then] Attorney General [Dr Ahmed Ali Sawad],’’ reads the statement.

The JSC said that the case was investigated by the sub-committee formed to recommend disciplinary measures against judges.

Last Monday, the JSC announced that it had formed a subcommittee to investigate complaints about judges, indicating that its first subject was Civil Court Judge Naeem. This is the first case against a judge the JSC has conducted in more than a year.

The investigation of Naeem came after he reportedly declaring during the first hearing of a case filed against the state that he would not hear cases involving the state before parliament approved the reappointment of former Attorney General Dr Ahmed Ali Sawad.

Naeem’s decision was in defiance of precedent set by both a majority of Civil Court judges as well as the High Court, which had ruled that such cases could be heard before the AG received parliamentary consent.

The very same day parliament rejected for a second time Dr Sawad’s reappointment.

According to the JSC, the committee – which includes JSC Chair and Supreme Court Justice Adam Mohamed Abdulla, Judge Abdulla Didi and General Public Member Shuaib Abdurahman – was established under the Judges Act and that its first scheduled task was selected by a vote taken among its members.

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“Sunlight is the best antiseptic”: the case for an independent judiciary

The structure of the Judicial Services Commission (JSC) is compromising its accountability and obstructing the creation of an independent judiciary, says Professor Murray Kellam, a former Australian Supreme Court Justice who has spent several weeks observing the group.

The UNDP brought Kellam to the Maldives to observe the JSC based on a recommendation in a report by the International Commission of Jurists (ICJ) that suggested the commission be subjected to independent outside oversight.

As well as a former Justice of the Supreme Court of Victoria, Kellam is the current Chief Commissioner of the Tasmanian Anti-Corruption Commission and also has extensive experience assisting with the development of legal systems in countries such as Burma and Bangladesh.

He has also been appointed an Officer of the Order of Australia, an award given for distinguished service of a high degree to Australia or humanity at large.

“I think there’s a real problem when you’ve got members of both the executive and the legislative body administering judicial affairs,” Kellam said, on conclusion of his visit to the Maldives.

“You have the Speaker, Attorney General and an MP sitting in judgement on their own recommendations. That situation doesn’t need describing any further.”

Kellam said his observations were not intended to be critical of the members of the JSC, but rather to assist in the development of an independent and respected body.

In other countries it was usual for the Chief Justice to chair the body responsible for judicial accountability, but the members were made up of respected people from the community “rather than those allied to the executive or legislature.”

“The process in your Constitution here is that [in the event of] gross misconduct and gross incompetence, the Majlis (parliament) has the job of dismissing them, and that’s consistent with other places in the world. But the problem is that the body making the recommendation is also the membership.”

Kellam was provided with full access to the JSC’s meetings and files during his visit, however he acknowledged that language was a barrier – most significantly, the lack of official English translations of most legislation.

“The unofficial translation of the Constitution is pretty good, but I have doubts about the accuracy of the translation for the JSC Act. The UNDP assisted, but the [language gap] makes it pretty difficult.”

However, Kellam said that he agreed with the ICJ’s recommendation that parliament should evaluate the JSC “and ensure it operates more transparently.”

“There may be an argument that the appointments and complaints processes [for judges] should be separated,” he said. “At the moment it appears that the expectations of the authors of the constitution are not being met.”

There had been, he noted, a requirement for the JSC to undergo training, ”but that was removed by the Supreme Court and subsequently by the legislature.”

Urgent legislation required

Beyond a review and possible reform of the JSC by parliament, the Majlis needed to urgently pass a Criminal and Civil Code, a Penal Code, and an Evidence Act, as currently, “the courts have no guidance as to the exercise of their powers under the constitution.”

“These legislative enactments ensure consistency on the part of the courts and a proper legal basis for the process of litigation,” he said, adding that under the current circumstances, “I can’t see how the courts can operate. The importance of the legislature passing such legislation cannot be overstated.”

As for oversight, the parliament, he said, was entitled to take an interest in the functioning of the judiciary, as the courts were funded by public expenditure.

However, Kellam did mirror the concerns of the ICJ at the interference of the executive, and particularly, the “the extra-constitutional use of the Maldives National Defence Force and police and defiance of court orders.”

He noted the ICJ’s concerns over public statements of members of government meeting with judges and members of parliament imploring the President to ignore both the courts and the legislature: “Actions such as this brought Hitler to power,” he warned.

Judges needed to be able to make decisions contrary to interests of the executive, and should not be subject to pressure from the politically powerful, commercially powerful or any other specific social interest groups.

“I have in my own career made decisions the government was extremely unhappy with – but they did what they were told in due course, because that’s the way the rule of law operates.”

At the same time, “‘Rule of law’ does not mean ‘rule of judges’. Judges are not free to do as they wish. They are subject to the Constitution and the laws enacted by parliament. It is not their role to make disparaging
remarks about parties, witnesses who appear before them, or to send signals to society at large in order to intimidate and undermine other basic freedoms such as freedom of expression.

“Respect is not gained through coercive use of power. The judiciary earns respect by its performance and its conduct,” Kellam said.

Framework in place

The Maldives’ Constitution provided an excellent model for an independent judiciary, “much better than the ones in many countries I’ve worked in,” Kellam said.

“There was quite clearly a real endeavour to set up accountability mechanisms, such as the JSC, Anti-Corruption Commission (ACC) and provision for an independent prosecutor – a really significant step.

“But having a model is one thing, executing the plan is another. In the end that depends on the calibre and integrity of people who run these organisations. They need to set the gold standard in terms of behaviour, conduct and transparency.”

Paying judges generously was a significant part of the equation, he said, recalling a judge he met in Cambodia who drove taxis at night to avoid having to accept bribes.

Australia, he commented, had never had a judge convicted of bribery.

“Judges misbehave in Australia just like elsewhere, but we do not have corruption. I think that’s a reflection of accountability, but also a significant reflection of the fact that they are well-paid. As a judge in Australia you would have to be extremely silly [to accept a bribe], because the risk of losing your salary and all your pension entitlements is simply too high.”

Transparency trumps nepotism

In both his interview with Minivan News and a lecture held on completion of his visit to the Maldives, Kellam repeatedly emphasised the importance of independence.

It was not, he said, necessarily a obstacle to independence that the Maldives was a small country with myriad family, political and business connections.

“I chair the Anti-Corruption Commission in Tasmania, a state with a population of 500,000 people,” he said. “Many families have been living there a very long time, and everyone knows everyone else which is a reason why they brought an outsider like me to chair their Anti-Corruption Commission.

Transparency, he said, was the answer to the problem, and was as much a defence for those drafting contracts with those they knew as a means of mitigation corruption.

“There should be a declaration at the start of meetings, where interests should be stated,” he said.

“If you are awarding a contract to your brother-in-law, which can happen in Tasmania, it must be on the table. The person awarding contract should make the declaration. It must be a similar problem for judges in island courts here – judges here know the islanders, but you can’t have them disqualifying themselves.

“We have a jury system in Australia, and in a town with a population of 20,000 the jury will know all the victims and the witnesses. The important thing is that there is transparency and it is on the stable.

“Sunlight is the best antiseptic. The real problem of perception happens when these things are not out in the open – when they are done under the table, and somebody says ‘Hang on, he’s related or they had dinner the other week.’ If it is in public, decisions can be made impartially. If it’s disclosed you can look at the tender process and say ‘Not withstanding that this person is the uncle of the person delivering on the contract, on the face of it this is transparent.’ That’s entirely different to somebody awarding a contract to a relative behind closed doors.”

Rulings had to also be open to public scrutiny, and actively published and subjected to public analysis. Judges and their verdicts were open to scrutiny and criticism, Kellam said, and in Australia it was understood that judges did not pursue cases of defamation against them.

The economic case for justice

An impartial judicial system was a key factor in encouraging foreign investment, Kellam said, and could have a direct and significant impact on the economy.

This was something that Singapore recognised 15 years ago, he said.

“They understood the value of a civil system that is incorruptible and competent. They spent a lot of money on their judiciary and Transparency International now rates their civil legal system as one of the best in the world.

“Singapore realised that one of the best ways to attract investment was to have a system whereby international investors knew they would get a fair go in domestic courts. If you look at the circumstances in other parts of the world where investors have no confidence in the judiciary, that deters investment and takes it offshore. They’ll go somewhere else.

Citing Adam Smith, considered one of the founders of modern capitalism, Kellam observed that “Commerce and manufacturers can seldom flourish long in any state which does not enjoy a regular administration of justice, in which people do not feel themselves secure in possession of their property, in which the faith of contracts is not supported by law.”

As a foreign investor, Kellam said, “you want to know that contact you enter into with domestic partners will be understood and enforced by courts if there is a breach. You want courts to judge you impartially – you don’t want to be discriminated against because you are a foreigner.”

“Secondly, it’s no good getting judgement if no there is enforcement – which is a major factor in developing countries. Sure you can get a judgement, but it’s not worth the paper it’s written on because there is no process for getting it enforced, and you can’t turn judgements into anything productive.”

Singapore had recognised this, and become not only a hub for foreign investment but also a regional hub for commercial arbitration.

“People from around the region will use Singapore as a place of law and business,” Kellam observed.

“The constitution sets up [an independent judiciary] for principled reasons. But there are not only good arguments for these in terms of principle, there are very good economic arguments. But the judges have got to understand that, and they’ve got to build it.”

Perhaps tellingly, President’s Member of the JSC Aishath Velezinee observed on her blog that “not a single member of the Judicial Service Commission (except for myself) or staff attended Professor Kellum’s lecture.

“What cannot be ignored is that neither the JSC nor the judges have the willingness and interest or the knowledge and capacity to reform the judiciary in accordance with the Constitution, despite the rhetoric.”

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MDP requests parliament dismiss Dr Afrasheem from JSC

The Maldivian Democratic Party (MDP) Parliamentary Group has sent a letter to the parliament requesting the removal of DRP MP Dr Afrasheem Ali from the Judicial Service Commission (JSC).

The letter was signed by the leader of MDP Parliamentary Group MP Moosa ‘Reeko’ Manik.

In the letter, Moosa alleged that Dr Afrasheem had violated Judicial Service Commission’s Act, Act number 10/2008 Section 20[a] and [b] which states that a meeting of the JSC could be held only if more than half of the total number of members were present and 20[b] which requires majority vote of present JSC members to make any decision.

Moosa referred to the incident where Dr Afrasheem allegedly phoned JSC member Fahmy Hassan also head of Civil Service Commission (CSC) to ask whether he was fine with Dr Afrasheem speaking in the Supreme Court on behalf of the JSC in the trial conducted after Criminal Court Judge filed a case against the JSC’s appointment of Judges to the High Court.

”Records of the JSC shows that Dr Afrasheem Ali has made that decision against the policy that the law state,” Moosa said in the letter. ”Although Article 164 of the constitution very clearly states that persons appointed to the JSC who is not a member of the parliament shall receive allowances and salary as decided by the parliament, records of the JSC shows that Dr Afrasheem Ali has been paid such allowances.”

Dr Afrasheem had played a role in the unlawful and unconstitutional activities the JSC had conducted, and he has been insincere in carrying out the responsibilities of the JSC, Moosa claimed.

”Therefore, [we] find Dr Afrasheem is not an appropriate person to represent the parliament in the JSC, [we] hereby present this complaint according to article 165 of the constitution and request his dismissal,” Moosa said in the letter.

Minivan News understands that parliament is currently conducting a closed door investigation of the JSC, however no information on the progress or outcome has been provided.

The International Commission of Jurists (ICJ) recently published a report on the JSC critical of the commission’s independence, among other observations. The JSC has not tabled the report.

Dr Afrasheem was not responding to calls at time of press. JSC interim Secretary General, Abdul Faththah, also the JSC’s legal representative, referred Minivan News to the JSC’s media spokesperson, Hassan Zaheen. Zaheen said the JSC had no comment on the matter, but noted that “the parliament decides which MP represents it on the commission.”

Faththah has previously told Minivan News that while there “should be quorum”, in time-sensitive matters such as court summons members sometimes had to make decisions outside formal meetings, with the approval of other members.

“This is not a matter so important to take a decision with the discussion of the members,” he said at the time.

JSC members had also previously decided who should attend court hearings, during a meeting of full attendance, he added, “[but] that day the Chair was not in Male’, so members decided instead that the Deputy [Afrasheem] should attend [court],” acknowledging that “they may not have had quorum that time.”

“These kind of things happen with things like court attendance issues, but no other decisions,” he said.

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JSC investigates Civil Court judge

The Judicial Service Commission (JSC) has announced that it has formed a subcommittee to investigate cases concerning judges, indicating that its first subject was Civil Court Judge Sheikh Mohamed Naeem.

The investigation of Naeem came after media reported that during the first hearing of a case filed against the state, he stated that he would not accept cases related to the state before Parliament approved the appointment of Attorney General Dr Ahmed Ali Sawad, and cancelled the hearing.

Parliament today declined to approve Sawad for the second time, prompting President Nasheed to appoint Solicitor General Abdulla Muizz as his replacement.

The JSC said the committee, which consists of President of JSC Adam Mohamed Abdulla, Member of JSC Abdulla Didi and Member of JSC Shuaib Abdurahma, was established to take measures against judges under the Judges Act. Its first scheduled task was selected by a popular vote taken among its members, it said.

Naeem’s case will be the first time the JSC has investigated a judge in over a year, despite receiving over 140 complaints.

The International Commission of Jurists (ICJ) has published a report critical of the JSC’s independence,  however the commission has thus far refused to table the report.

Local media SunFM reported that the first hearing of the case against Judge Naeem was held today, and he was questioned.

President’s Member of the JSC, Aishath Velezinee, stated on her Article 285 blog that “Judge Naeem has been under investigation since the interim Commission, [for] nearly two years. No updates on the investigation [have been] tabled despite the legal requirement that a report must be submitted in writing every 30 days.”

Last Monday, local media reported the hearing of a case filed against the state by Dhivehi Qaumee Party (DQP) claiming that the agreement made between the Finance Ministry and GMR was not valid and that it violated the constitution.

In the Judges Chamber, Judge Naeem said that four of the Civil Court seven judges had agreed to accept cases related to the state, in a meeting to decide whether or not to accept cases related to the state after Dr Sawad was reappointed as the Attorney General following his first dismissal by parliament.

However, Judge Naeem said he would not follow the majority decision of the Judges and would not accept cases concerning the state before the parliament decided on Dr Sawad, or until a superior courts ruled otherwise.

The constitution requires all members of the cabinet to have the consent of the parliament.

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Runaway judiciary leaves the Maldives “at a dangerous junction”, says Velezinee

The Maldives is at “a dangerous junction” following the publication of an in-depth report into the state of the country’s judiciary by the International Commission of Jurists (ICJ), says President’s Member of the Judicial Services Commission (JSC) Aishath Velezinee.

The report was released this week following a visit by an ICJ delegation that included former UN Special Rapporteur on the Independence of Judges and Lawyers, Dr Leandro Despouy. It urged the provision of institutional and individual support for judges and magistrates in the Maldives, foreign oversight and assistance, and highlighted judicial accountability as “the key to cultivating public confidence [in the judiciary]”.

The report was especially critical of the JSC, “constitutionally established as an independent and impartial body tasked with vetting non-Supreme Court judges and magistrates.”

The JSC, the report said, “was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner. To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment. Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”

The JSC has refused to even table the report, Velezinee said on Thursday.

“We have not been given the opportunity to discuss the report in the JSC,” she said.

“The first thing is for those members exposed as not up to the conduct required by JSC to seriously think about resigning. Number two – we need to table the ICJ report and discuss it. But they have shown no interest in doing so.”

The ramifications of not doing this meant that the Maldives  had “a runaway judiciary”, Velezinee said.

“There has been very public resistance from JSC to any sort of democratisation of the JSC. I’m afraid the people are fooled – the constitution promises an independent judiciary and JSC, which would ensure judges are impartial and independent. But the JSC never institutionalised itself as an independent institution.”

The ICJ had managed, Velezinee said, “to put together a clear picture drawing from the little documentation that was available to them.”

“A lot of very political opinions were shared with them by stakeholders, and they would have had to be really vigilant to not be taken in by the politics of it,” Velezinee said.

“I think the challenge for them was that almost all the documentation is in Dhivehi and not available publicly. Considering the difficulties they had getting information and the very political situation we are currently in, I think they have done an excellent job.”

Situation at hand

Under the constitution the next step forward would be for the Majlis (parliament) to act as the independent oversight body and “put the JSC on trial”, Velezinee said.

“But every time controversy in the JSC becomes public the Majlis intervenes – not in a way that holds JSC accountable, but with the sole objective of covering JSC’s misdeeds. Right now the parliament has a three-member subcommittee conducting a secret investigation of JSC – these are meetings that are closed door [and not public knowledge].”

Parliament, Velezinee contended, had failed to hold the JSC to account and had resisted reforming the watchdog body.

“The parliament is together with the judiciary on this – certain influential members of parliament would like to maintain the status quo so they can control the judiciary,” Velezinee said.

“This is not such a far-fetched radical thought coming from me any more because of the things we have seen over the last year to do with politicians and judicial action. The courts are a playground for politicians and are not trusted by the general public.

“Parliament has failed, and there is no other institutional mechanism in this constitution for the JSC to be held to account.”

It was, Velezinee said, in the interests of everyone, including the international community and the state, “to ensure that the constitutional provisions to establish independent judiciary are followed to the letter and in spirit. We have failed to do that.”

The reason for that failure, she suggested, was a fear among leaders of the former administration “who are continuing with criminal activities they have allegedly been carrying out for a long, long time. These are allegations only because they have never come up before a court of law in all this time.

“There is widespread public perception that certain members of parliament are behind all the serious organised crime going on in this country. This includes serious drug issues, gang violence, stabbings. It is a much discussed issue, but it has never come up in the courts. I can see now that perhaps it may be true – otherwise why prevent the formation of an independent judiciary? I don’t think they would have confidence that they would get away free.”

Velezinee observed that former political figures such as attorney generals were now representing these MPs in court as their lawyers, and by and large, “they win every case.”

“I would find it an insult if had to go and argue my case before someone who does not understand the law. Why are these people doing it? On some islands the parents are locking up the primary schools if the teacher is not qualified. Why are we content with people who have not completed primary school sitting on the bench and judging us?”

Deep-rooted cultural issue

Many of the problems now embedded in the Maldives and its institutions can be traced to the fact that the country never had the opportunity to acclimatise to the concept of democracy before it was introduced, Velezinee suggested.

“For the last two years I have done nothing but think about this and try to change the JSC. I have spent hours and hours by myself thinking this through.

“What I think is this: when a student from a developing country goes to a university in a developed country, you go through an orientation process. If you live in the developing world and you go to work in the third world as a volunteer you also go through orientation – it’s to prevent culture shock.

“We just woke up one day to a new culture. We have always had this culture of subservience, of submissiveness where you are taught to respect your elders – certain people who have been shown to you as the leaders. Then suddenly we adopted this constitution that says everyone is equal.

“I think what people have found as my brazenness is that I have dared to publicly criticise the Speaker of Parliament and senior judges. They do not understand that I am equal to them as a member of JSC – the concept is completely lost on them.”

For the past 30 years judges effectively worked as the employees of those “hand-picked” by the former government, Velezinee explained – to the extent that failures to extend a particular ruling as required by the then Ministry of Justice resulted in a black mark on the judge’s file.

“The only qualification it appears was a willingness to submit to the will of the government at the time – to follow orders,” Velezinee said.

“Not everyone has the mindset to follow orders and serve in that kind of capacity. I believe it has excluded people with independent thinking, or the necessary legal knowledge – such people would take it as an insult for someone to order them how to decide a case.

“Now the JSC has decided – I believe with the support of parliament – that the same bench will remain for the next 40 years, retitled as an ‘independent judiciary’.”

Download the ICJ’s report, ‘Maldives: Securing an Independent Judiciary in a Time of Transition’ (English)

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